sdp not sdo

I'm not a lawyer and I normally have better things to worry about than worry about constitutional law issues, but the inconsistency from both sides on substantive due process is really something to think about. The biggest concern is that application of substantive due process to economic rights could lead to very unfriendly results for liberals. BinkyPing:

The fact is, if it can prop up rights as disparate as privacy and contracts, it can prop up pretty much any right a crafty judge chooses to put under its umbrella. Or, worse yet, it could bring back Lochner-era rulings that gutted economic regulation for several decades: the right to contract resulted in maximum hour and minimum wage laws being struck down, which means there's a lot of contemporary stuff us liberals like that would disappear pretty quickly (such as Social Security, the Environmental Protection Act, and the Civil Rights Act). The political process will never allow conservatives to take these things away, so the Court is their only recourse.

Of course, as a liberal who likes the right to privacy but is a little bit squeamish about striking down laws that protect workers, I'm always looking for something to square what seems to be a hopelessly hypocritical position. Armando at DailyKos gives it his best shot:

Liberals of course have a different view. Economic rights are protected through the just compensation clause of the 5th Amendment and the political process. It is our view that the Bill of Rights concentrated on individual rights for a reason, the rights of individuals can be trampled by the majority. Those holding economic rights generally have the wherewithall to defend their interests from majorities in the political process or through other means. And it seems clear that the Framers were correct in their assessment.

This is an extremely results oriented argument. He makes no real attempt to explain what text exactly would support his holding that economic and privacy rights are actually fundamentally different. It's pretty clear that Armando is just working backwards from his (and my) policy preferences and constructing legal reasoning from it. I just don't see how we can make coherent law when there are really no consistent guidelines on what rights should be protected under substantive due process.

Schizophrenia with regards to substantive due process is just as pervasive on the conservative side, who would love to see a return to Lochner era jurisprudence. Jack Balkin wrote an excellent piece comparing the dissenting opinion in Kelo to Dredd Scott. The kernel is that the most conservative justices on the court latched on to a substantive due process argument:

So where *do* we get the principle banning takings for purely private use that was at stake in Kelo? We get it from the basic idea of substantive due process, which prohibits A to B transfers and protects vested rights from being destroyed by government. Justice Thomas tries to avoid recognizing this in his dissenting opinion, arguing that despite its language the Public Use clause cannot apply merely to public uses; otherwise, it would allow takings for private use without compensation, which would "contradict a bedrock principle well established by the time of the founding: that all takings required the payment of compensation." He artfully elides the question of what textual provision in the Constitution prevents takings for private use with compensation. We know the answer-- it's the Due Process Clause. That's what most people at the Founding thought, and that's why the Fifth Amendment is written that way.

But, wait, that would mean that in Kelo Thomas is actually making an argument from (shudder) substantive due process.

Read the whole thing if you have time, it's really good. It seems to me that conservatives wouldn't mind bringing back substantive due process in order to strike down labor regulations and return us all to indentured servitude. However, since this position is so politically unteneble, they claim to be entirely against "pulling rights out of thin air" and "legislating from the bench." Fortunately for them, Lochner era thinking is more or less dead, so nobody really worries about it. However this doesn't at all take away from the deeply intellectually dishonest position of their darlings on the court, Thomas and Scalia.

Without stricter tests on how to apply it, substantive due process appears to be simply a vehicle for reading one's policy preferences into the Constitution. Unfortunately, this is really a pretty difficult problem to solve. Who doesn't want to legislate from the bench, after all?